Judge Denies New Trial for Veteran Firefighter Convicted of Murder

A judge denied a motion Friday for a new trial in the case of veteran LAFD Capt. David Del Toro, who was convicted in March of the second-degree murder of Jennifer Flores, a San Gabriel woman whose nude body was found near the firefighter’s Eagle Rock home.

Los Angeles Superior Court Judge Lance Ito set December 16 as the sentencing date for Del Toro, shortly after ruling that the former firefighter would not get another trial and that the defense’s argument of jury misconduct is baseless.

Defense attorney Joseph Gutierrez introduced eight arguments in his 42-page motion for a new trial for his client. Ranging from the prosecution’s “express or implied malice” in admitting certain evidence before the jury to the court’s refusal to allow the jury to see “the very small house where the alleged crime took place” on Eagle Rock’s Vincent Street, the arguments represented Gutierrez’s final effort to show the court that his client was denied a fair trial.

Possible Jury Misconduct

Gutierrez pointed to the fact that a juror on the 12-member jury panel was dismissed for violating court instructions and discussing penalties for the defendant before arriving at a guilty verdict. Subsequently, a second juror asked to be excused from the panel because she felt she could not reach a fair verdict after hearing that a manslaughter charge is punishable by seven years in prison and that Del Toro had already been in jail for five.

“All 12 jurors said they heard discussions regarding punishment,” Gutierrez told the court, quoting the second juror as saying that she “couldn’t sleep at night, knowing that Mr. Del Toro would be released in two years.”

The prosecutor, Deputy District Attorney Bobby Grace, countered that a key point Gutierrez appears to have missed is that after the two jurors were dismissed, they were replaced by two alternate jurors and that the process of deliberation started all over again.

Besides, added Grace, the court made a thorough inquiry into the matter of possible jury misconduct by focusing on the extent to which the jurors were affected by the discussion regarding penalties, and whether or not they could remain impartial toward Del Toro in light of those discussions.

“And the court, in its sound discretion, made a finding that it was its belief that the jurors were fair and impartial toward Mr. Del Toro,” said Grace. Further, because the jurors were required by law to begin their deliberations anew, “everything that Mr. Gutierrez is saying that the two jurors said—that had to be put aside.”

The court, said Grace, “handled the matter correctly,” based on case law, which states that even if there is evidence of jury misconduct, it is important to determine any presence of prejudice among jurors. “Everything that Mr. Gutierrez is saying about [jurors’] prejudice is speculative because “we weren’t there” in the jury room, said Grace, adding that Gutierrez is “trying to pierce the veil of [jury] deliberations.”

Improper Evidence?

Gutierrez told the court that besides the issue of possible jury misconduct, jurors also witnessed what he said was “improper evidence” that was not only irrelevant to the case but whose nature was prejudicial.

Gutierrez was referring specifically to the prosecution’s allegation that Del Toro was required by the LAFD to attend anger management and domestic violence classes and that during a PowerPoint presentation of the course’s curriculum, the jury learned that Del Toro might have been a sex addict. (In his closing arguments in March, Grace emphasized that Del Toro killed Flores because she refused to have sex with him.)

The alleged disclosure that Del Toro was addicted to sex was in the form of a note made by the supervisor of the classes that the firefighter was attending. The note flashed briefly during the PowerPoint presentation in the court before Judge Ito objected and ordered it removed.

“My recollection of that was that it was taken down within a second,” said Ito.

'Not a Perfect Trial'

“In totality, while I feel this was not a perfect trial—no trial is—I believe it was a fair trial,” said Ito. The judge added that the trial involved a “very complicated presentation” and that he was in fact prescient about the verdict.

“I said before the trial that this would end in second-degree murder,” said Ito.

Del Toro’s sentencing will commence at 9 a.m. on Friday, December 16. So-called “sentencing witnesses”—from both the firefighter’s family and that of his victim—will make presentations aimed at helping the judge decide Del Toro’s prison term.